JUDGMENT
Jwala Prasad, J.
1. This application arises out of an order under Section 145 of the Code of Criminal Procedure whereby the property in dispute has been declared to be in possession of the second party. The property in dispute is said to be 5 dams 16 kauris share in a village called Sapao Nuawan, Tauzi’No. 1162/4.
2. The first party claimed possession over the aforesaid share by virtue of a certain amaldastak dated the 5th of Chait 1323, corresponding to 25th of March 1916, granted to him by one Muhammad Kasim apd Musammat Zobaida the proprietors of that property. The second party claimed possession over 21/2 dams share which they said belonged to the aforesaid two persons, by virtue of an amaldastak and patta dated the 3rd of June 1916. The 5 dams odd claimed by the first party is included in the 21/2 dams claimed by the second party.
3. The Magistrate’s finding is in the following words: “My finding is that the second party was given the theka of 7/2 dams share for one year i e., 1324 under the amaldastak and of 7 dams under the registered patta for seven years and was put in possession by the registered proprietors.” Just previous to the above finding the Magistrate held that the evidence of possession adduced by the first party was not at all reliable, and did not prove the possession claimed by that party.
4. The first question raised by the applicant is that the orders of the Magistrate is ultra vires inasmuch as it relates to a certain share of paddy crops which is a moveable property and not an immoveable property and that Section 145 does not apply to moveable property.
5. I was a member of the Bench that issued the Rule on the appplication of the petitioner and I understood that the proceedings under Section 145 were instituted in respect of the paddy crops stored in the khalian and not in respect of any immoveable property. This impression found support in the first paragraph of the judgment of the Court below where it was stated that there existed a dispute likely to cause a breach of the peace between the parties aforenamed with regard to the appropriation of the share of the paddy crops of 5 bighas 16 kauris interest in village, etc.”
6. The dispute, no doubt, came to light on account of the crops stored in the khalian and the Police reported that there was a danger of a breach of the peace. The report sets cut the history of the dispute and is clear from that report that the dispute between the parties was regarding the collection of rents of the share belonging to the owners from whom both parties claimed to have the disputed share in lease. Upon the Police report of the 2nd of March 1917 the Magistrate issued an order under suction 144 of the Code of Criminal Procedure and fixed the 20th of March for the hearing of any cause that might be shown by the parties. On’ the 20th of March the parties filed written statements and upon a consideration of the written statements and the report of the Police the Magistrate came to the definite conclusion that the dispute really related to the possession of the share of the proprietors from whom each party claimed to hold a lease. The Magistrate, therefore, passed the following order:Heard parties. This is a dispute about immoveable property. Draw proceedings under Section 145, Criminal Procedure Code, and serve on all concerned”. From the aforesaid order of the Magistrate it is clear that the dispute was regarding the possession of 5 dams 16 kauris share of Muhammad Kasim, and Musammat Zobaida in village Sepao Nuawan. It is clear that whatever may have been the reason for instituting the proceeding under Section 144 and whatever may have been the manner whereby the Magistrate came to know of the dispute between the parties the proceeding actually was instituted under Section 145 in respect not of the crops in dispute between the parties but in respect of the possession of the aforesaid 5 dams 16 kauris.
7. I, therefore, hold that the Magistrate had jurisdiction to take action under Section 145 of the Code of Criminal Procedure.
8. The second contention of the learned Counsel for the applicant is that the proceeding is without jurisdiction inasmuch as it relates to a share of village and does not relate to the entire village or to any specific lands in the village which could be demarcated or delineated by means of boundaries. This contention is probably based upon the expression used in Section 145, namely, concerning any land or water or boundaries thereof”. The above expression is to be read with Clause 2 to Section 145 which says that land or water includes among other things crops or other produce of land, and the rents or profits of any such property. There is, to my mind, therefore, no doubt that the right to make collections or to appropriate the crops or produce of a village or shares in a village properly comes within the purview of Section 145.
9. I am fortified in this view by the decision in Abhayessari Debi v Shidhessari Debi 16 C. 513 : 8 Ind.Dec. (N.S.) 339 where it was distinctly held that a dispute as to the right to collect rents was a dispute concering tangible immoveable property within the meaning of Section 145 of the Criminal Procedure Code. This decision followed the earlier decision in Pramatha Bhusana Deb Roy v. Doorga Churn Bhattacharji 11 C. 413 : 5 Ind. Dec. (N.S.) 1035. The contention that these decisions apply only to a dispute regarding the collection of rent in respect of an entire village and not of a share or shares of a particular village does not appear to me to be sound, particularly in a case where the share in dispute is separate from the other shares in the village and where each party claims to be in exclusive possession and not in joint possession of the share. It appears from the evidence of witness No. 1 on behalf of the petitioner himself that the collection of this share is quite separate from the other shares in the village. The witness referred to above is the patwari of the village and there is no reason why his evidence should not be accepted regarding the mode of collection in the village as a matter of fact nothing has been shown on behalf of the petitioner to the contrary.
10. I, therefore, hold that the Magistrate had jurisdiction to initiate proceedings under Section 145 of the Code of Criminal Procedure in respect of the dispute as to the possession of the share in question.
11. The next contention of the learned Counsel on behalf of the petitioner is that the Magistrate had no jurisdiction to direct the attachment of the crops which were not standing on any portion of land situated within the share in dispute but were at the time that the order was passed stored in the threshing floor. It appears that it appeared to the Police that there was danger of a breach of the peace regarding the crops stored in the khalian and the Police reported to the Magistrate for action being taken under Section 144 of the Code of Criminal Procedure and in the meantime the Police kept watch over the crops so that they may not be removed by either party.
12. The Magistrate on the 7th of March on the report of the Police passed the following order “* * * in the meantime the Police to see that no breach of the peace takes place.” On the 9th of March the Magistrate passed an order for the issue of notices under Section 144 on the parties.
13. In these two orders the Magistrate did not make any direction regarding the crops. On the 20th of March when the Magistrate finally passed his order for taking proceedings under Section 145 instead of Section 144 the Magistrate made the following order as regards the crops: “Under Clause 4 to Section 145, Criminal Procedure Code, I attach the subject-matter of dispute and direct the Police concerned to keep the paddy standing thereupon in charge of a responsible person,” The order of attachment of the Magistrate only related to the subject-matter of dispute i.e., 5 dams 16 kauris share and not to the crops in question. As regards the crops his direction was that the Police should keep the paddy standing on the property in dispute in charge of some responsible person. From the summary of the proceedings taken in connection with the crops and the orders passed by Magistrate referred to above I think that there was no order by the Magistrate attaching the crops. Under Section 144 the Magistrate had power to direct any person to abstain from a certain act; and thus, in my opinion, the Magistrate had in this case power to order the parties to refrain from interfering with the crops in any way.
I think that the order restraining the disputing parties from interfering with the crops implied that the Police should see that the crops were not in any way removed by any body. The action of the Police and of the Magistrate in keeping the crops in charge of a responsible person, therefore, appears to be within the powers vested by sections 144 and 145.
14. The last contention of the learned Counsel is that the crops should be directed to be placed in the khalian where they were found as the khalian is not in dispute but is outside the village.
15. When by the final order under Section 145 possession has been declared to be with the second party, the crops being the profits of the property in dispute belong to the second party. The first party is found not to be in possession of the share in dispute and cannot, therefore, claim the crops in question. The order of the Magistrate making over the crops to the second party was also, therefore, a proper order after the adjudication of possession of the disputed property in favour of the second party.
16. I, therefore, decline to interfere with the order made by the Magistrate and I dismiss this application.